Calcutta High Court (Appellete Side)
Satyajit Kowar vs Smt. Anima Kower & Ors on 9 August, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
F.M.A. T 552 of 2017
With
(CAN 4811 of 2017)
Satyajit Kowar
Vs.
Smt. Anima Kower & Ors.
For the Appellant : Mr. Shiba Prasad Ghosh, Adv.
For the Respondent nos. : Mr. Ashok Chakraborty, Sr. Adv.,
1, 2, 4 & 5. : Mr. Rabi Sankar Chatterjee, Adv.,
: Mr. Suman Sankar Chatterjee Adv.,
: Mr. Soumen Banerjee, Adv.
Heard on : 28.07.2017 & 08.08.2017.
Judgement on : 9th August, 2017
Jyotirmay Bhattacharya, J.
This First Miscellaneous Appeal is directed against an order being no. 2 dated 17th April, 2017 passed by the learned Civil Judge (Senior Division) First Court at Barasat in Title Suit no.281 of 2017 at the instance of the plaintiff/appellant.
2
By the impugned order the plaintiff's prayer for ad interim injunction was refused by the learned Trial Judge. Notice was directed to be served upon the defendant nos. 2 to 7 asking them to show cause as to why temporary injunction as prayed for by the plaintiff shall be granted against them.
Let us now consider the legality of the said judgment in the facts of the present case. It is stated by the plaintiff that the plaintiff and the defendant nos. 1 to 3 were partners of an unregistered partnership firm. They purchased the suit property by several registered deeds of kobala while all of them were partners of the said partnership firm. Such purchases were made in the name of the partnership firm represented by the plaintiff and the defendant nos. 1 to 3 as its partners. It is alleged in the plaint that some of the co-sharers have executed a deed of partition without joining of the plaintiff and thereby effected partition of the suit property illegally. Since the defendant nos. 4 to 7 are claiming ownership over the suit property on the strength of transfer of the suit property from some of the co-sharers, they are also impleaded as defendants in the instant suit. Since the plaintiff was facing difficulty in enjoying the suit property jointly with his co-sharers, he made a request orally to the defendant nos. 1 to 3 for amicable partition of the suit property. Such prayer of the plaintiff having been turned down by those defendants, the instant suit for partition was filed by the plaintiff.
3
After filing the suit, the plaintiff filed an application for temporary injunction for restraining the defendants from disturbing his possession in the suit property and also for restraining the defendants from changing the nature and character thereof till the disposal of the suit. Relief by way of ad interim injunction was also sought for by the plaintiff in the said application.
The learned Trial Judge after perusing the materials on record came to the conclusion that the plaintiff has failed to satisfy the Court about the existence of the prima facie case in the suit. Such conclusion was drawn by the learned Trial Judge by considering the deed of partition being annexure (e) whereby the suit property was partitioned amicably amongst co-sharers and the reason for excluding the plaintiff and the defendant no. 1 in the process of partition was not found to be unjustified as they had relinquished their share in the partnership firm.
The legality of the said order is under challenge in this appeal. It is well-settled that even at the stage of considering the plaintiff's prayer for ad interim injunction, the Court is required to consider the three basic principles for grant of injunction i.e., (i) prima facie case (ii) balance of convenience and inconvenience and (iii)irreparable loss and injury. 4
However, there are some basic distinction between consideration of those principles of grant of injunction at two different stages of the injunction proceeding. At the stage of consideration of the plaintiff's prayer for ad interim injunction, Court is required to be satisfied with regard to all the three tests by considering the pleading of the plaintiff himself and the document which will be relied upon by the plaintiff at the time of hearing of the plaintiff's prayer for ad interim injunction. No other document can be considered by the Court while considering the plaintiff's prayer for ad interim injunction. On the contrary, while considering plaintiff's application for temporary injunction, the Court is required to be satisfied about all the three tests after considering the pleadings of the plaintiff as well as the pleadings of the defendants and the documents which will be relied upon by them.
Since, we are still at the stage of consideration of the plaintiff's prayer for ad interim injunction, we prefer to concentrate ourselves to assess the merit of the plaintiff's prayer for ad interim injunction by restricting our consideration to the pleadings of the plaintiff himself.
Mr. Chakraborty, learned Senior Counsel appearing for some of the respondents submits that even at the stage of consideration of the plaintiff's prayer for ad interim injunction, Court need not shut its eyes to some other additional relevant facts and figures if the Court finds that the plaintiff has not approached the Court seeking such relief promptly and the plaintiff is found to be guilty for suppression of material facts.
5
We agree with Mr. Chakraborty, learned Counsel with regard to the submissions made by him as recorded hereinabove. It is also brought to our notice by Mr. Chakraborty, learned Senior Counsel that though undisputably the plaintiff was a partner of the partnership firm which purchases the suit properties from the erstwhile owners thereof by several deed of conveyances but subsequently the plaintiff retired from the said partnership firm after acceptance of his share in the said partnership firm.
It is also brought to our notice that a deed of retirement was also executed by the plaintiff voluntarily and he accepted the value of his share as on the date of his retirement. He thus, contends that when the plaintiff voluntarily retired from the partnership firm after accepting the value of his share as on the date of his retirement by executing a deed of retirement, he cannot subsequently maintain the suit for partition as he ceased to have any interest in the partnership business and its assets after his retirement.
Mr. Chakraborty thus, submits that the very fact of retirement of the plaintiff from the partnership business on execution of a deed of retirement voluntarily by the plaintiff having not been disclosed by him in the plaint, the plaintiff disentitled himself from getting any interim order of injunction due to suppression of such material facts.
6
He further submits that admittedly he retired from service sometime in the year 2009 but the instant suit for partition was filed in 2017. Such long delay in filing the suit coupled with his silence in exercise of his right in respect of the suit properties for all these long period also stand in the way of passing any order of injunction in favour of the plaintiff.
Keeping in mind such submission of Mr. Chakraborty, let us now consider as to how far the learned Trial Judge was justified in refusing to grant ad interim injunction in favour of the plaintiff in the said suit. In the facts of the present case we find that there was no quarrel between the parties so far as the existence of the unregistered partnership firm is concerned. It is also an admitted position that the plaintiff was a partner of the said unregistered partnership firm. It is also an admitted position that the suit properties were purchased by the said partnership firm represented by all the four partners, viz., the plaintiff and the defendant nos. 1 to 3. All these facts were disclosed in the plaint itself.
Though the plaintiff has not disclosed the factum of his retirement from the said partnership firm on acceptance of the value of his share by executing a deed of retirement but a faint hint about the allegation of his retirement from the firm can be traced out from the plaint.
Now we will have to consider as to how far such suppression of facts will amount to suppression of material facts touching the merit of the suit and/or the interlocutory proceeding arising out of application filed by the plaintiff in connection therewith.
7
In this context we have to consider as to how far the right title and interest which the plaintiff had in the suit properties as a partner of such unregistered partnership firm stood affected by his retirement from the partnership firm. Admittedly, such retirement was effected by execution of an unregistered deed of retirement.
However, we were told that the said deed of retirement was acted upon by all the partners as the plaintiff accepted the value of his share and also did not subsequently claim any interest in the said partnership firm. Admittedly, no deed of conveyance was executed by the plaintiff in favour of the remaining partners for transferring his right title and interest in the immovable properties i.e., the suit properties. It is also an admitted fact that no stamp duty as was required to be paid on the deed of conveyance, was paid by the plaintiff on the instrument by which such right title and interest of the plaintiff in the immovable property was alleged to have been transferred in favour of the remaining partners. In this background, we will have to consider as to how far the title of the plaintiff in the suit property stood affected. In this context we are required to consider the definition of the deed of conveyance as defined in Section 2(10) of the Indian Stamp Act 1899 as per the West Bengal Amendment which runs as follows:-
(10) Conveyance.- "Conveyance" includes a conveyance on sale every instrument and every decree or final order of any Civil Court or every order made by the High Court under 8 Section 398 of the Companies Act, 1956 (1 of 1956), in respect of amalgamation, merger, reconstruction, or demerger of companies, other then amalgamation, merger, reconstruction or demerger, of two banking companies or a banking company with a non-banking financial company by which property, whether movable or immovable, or any estate or interest in any property is transferred to, or vested in any person, inter vivos and which is not otherwise specifically provided for Schedule I; or by Schedule IA, as the case may be;
provided that on and after the constitution of the National Company Law Tribunal, the expression 'High Court' shall be read as "Tribunal".
Explanation. - An instrument -
(i) Whereby a co-owner of a property having defined share therein transfers such share or part thereof to another co-owner of the property or divides such property among co-owners, or
(ii) Whereby a partner transfers his share in the property of the partnership business to another partner or to other partners, whether separately or together with transfer of other business assets on retirement or dissolution, or whereby he contributes to the capital of 9 the partnership firm by transferring his right and title to, or interest in, any property, is, for the purpose of this clause, an instrument by which property is transferred.
Thus, considering the aforesaid definition of conveyance under the Indian Stamp Act as its applicable to West Bengal, we have no hesitation to hold that until and unless an instrument is duly stamped as per the Indian Stamp Act, 1899 as is applicable to the State of West Bengal and is also registered as per Section 17 of the Indian Registration Act, the right, title and interest of any partner in any immovable property cannot be held to have been transferred in favour of the other partners. As such, even by taking into consideration the deed of retirement which is neither sufficiently stamped as it was required to effect transfer of interest of a partner in favour of the other partners as per the Indian Stamp Act, 1899 as it is applicable to West Bengalnor having been registered as per Section 17 of the Registration Act, we cannot hold that the right, title and interest of the plaintiff in the immovable property belonging to that partnership firm stood transferred in favour of the remaining partners as per the said deed of retirement. We, thus, hold that even non-disclosure of the factum of retirement in the plaint as well as in the injunction application cannot affect the merit of his injunction application as his right, title and interest in the immovable properties belonging to the said partnership firm remained unaffected, notwithstanding execution of the deed of retirement by the plaintiff, by which he of course ceased 10 to be a partner of the said partnership firm. Accordingly, we cannot accept the contention of Mr. Chakraborty, learned senior counsel that the plaintiff is not entitled to get any order of temporary injunction in this case due to suppression of these facts, which according to us, are not material facts for assessment of the merit of the plaintiff's present claim in the suit.
Let us now consider the other part of the submission of Mr. Chakraborty wherein he contended the plaintiff is not entitled to get ad interim injunction as he did not approach the Court promptly. We have already recorded hereinabove that as per the plaint pleading, the plaintiff never complained of any threat with regard to his title and possession in the suit property until a deed of partnership was executed and registered by some of the partners of the said partnership firm without joining the plaintiff and the defendant no.1 and without allotting any share for them in the suit property. The learned Trial Judge, however, held that since the plaintiff and the defendant no.1 retired from the said partnership firm and partnership firm was reconstituted, the said partition deed cannot be held to be invalid. Be that as it may, the real threat to the plaintiff's title in the suit property was given by the defendants as and when the deed partition being annexure (e) to the injunction application was executed and registered sometime in the year 2016 and the deeds of gift were executed by some of such parties to the said partition deed in favour of their near relations sometime in the year 2016. The instant suit was filed in early 2017. As such, we do not find any unreasonable delay on the part of the plaintiff in approaching the Court seeking 11 such interim relief by way of injunction. We thus, cannot agree with Mr. Chakraborty, learned senior counsel that the plaintiff has disentitled himself to get any order of injunction in his favour because of the delay in approaching the Court seeking such relief.
In view of the discussion made hereinabove, we find that the plaintiff has succeeded in proving his prima facie title in the suit property. A prima facie case, to go for trial in our opinion has been made out by the plaintiff in this case. Prima facie case means a case made out in the plaint which is sufficient for the Court to conclude that the parties are required to go for trial in the suit. That means an arguable case is made out by the plaintiff in the plaint. In our view, the plaintiff succeeded in making out a prima facie case in the suit.
Let us now consider the principle of balance of convenience and inconvenience in the facts of the instant case. If the further transfer is permitted there will be multiplicity of proceeding. In our view avoidance of multiplicity of proceeding is another consideration for grant of injunction. Again if the parties and/or their subsequent transferees are allowed to the change nature and character of the suit property then even if the plaintiff ultimately succeeds in the suit still then the relief for partition of the suit property according to the shares to the parties may not ultimately be effected. As such, we hold that if the balance of convenience and inconvenience is weighed that will go in favour of grant of injunction.
Then again if the ultimate relief cannot be granted in the suit even if the plaintiff succeeds in establishing his title in the suit property certainly the 12 plaintiff will suffer irreparable loss and injury. As such, in our view, this test is also satisfied in the instant case.
Before parting with, we like to mention here, that though it was argued before us that the suit for partition is barred under the provision of Section 69(1) of the Partnership Act but we are unable to accept such contention in view of the Division Bench decision of the Hon'ble Karnataka High Court in the case of Sandhya Anthraper & Anr. Vs. Manju Kathuria & Ors. reported in AIR 2014 Karnataka 21 wherein it was held as follows:-
"15. Now, we refer to sub-section (2) of Section 69. According to that no suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as the partners in the firm. In the instant case, there is no contract between the plaintiffs on one side and defendants 2 to 5 on the other and thus, there is no question of plaintiffs enforcing a right arising from a contract and thus the Suit is not hit under sub-section (2) of Section 69 of the Act.
16. As per Section 69(1) of the Act, an unregistered partnership firm or partners are disabled from enforcing a right arising from a contract or the right conferred by the Partnership Act, 1932, but the provision does not take away the right of the partners of an unregistered firm to enforce their right under other enactments. According to Article 300-A of the Constitution of India, no person shall be deprived of this property save by authority of law.
We, thus dispose of the appeal by passing an interim order of injunction by directing the parties to maintain status quo with regard to their possession in the suit property and/or from changing the nature and character thereof and/or 13 from alienating selling or creating any third party interest in respect of the suit property till the disposal of the plaintiff's application for temporary injunction.
The plaintiff is directed to serve copy of the plaint application for temporary injunction and the documents which will be relied upon by the plaintiff in course of hearing of his application for temporary injunction upon all the defendants and/or their learned advocate on record in the Court below, positively for a week from date.
Leave is granted to the defendants to file affidavit-in-opposition to the plaintiff's application for temporary injunction within two weeks from the date of service of such notice of such pleading upon the defendants. Reply, if any, be filed by the plaintiff within two weeks thereafter.
The learned Trial Judge is requested to make all endeavour to dispose of the plaintiff's application for temporary injunction as early as possible without granting any unnecessary adjournment to any of the parties. It is made clear that while disposing of the instant first miscellaneous appeal, whatever findings this Court has recorded hereinabove are all tentative and prima facie findings of this Court which the Court made only for disposal of the appeal arising out of an injunction proceeding at the ad interim stage. As such, the learned Trial Judge is absolutely free to decide the merit of the plaintiff's application for temporary injunction without being influenced by any of the observation, made hereinabove. The learned Trial Judge is absolutely free to decide the plaintiff's application for temporary injunction in accordance with law and as per his own wisdom.
The appeal is thus allowed.14
No further order need be passed on the application for interim injunction filed in connection with the appeal.
The said application is also deemed to be disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Shivakant Prasad, J.)